Citation Nr: 0807381
Decision Date: 03/04/08 Archive Date: 03/12/08
DOCKET NO. 06-05 708 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to separate 10 percent ratings for tinnitus
perceived in each ear.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran served on active duty in the Navy from
August 1951 to July 1955, in the Air Force from October 1955
to October 1963 and from June 1964 to January 1967, and in
the Army from January 1967 to June 1973.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 2005 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
In that decision, the RO denied the veteran's claim for
increased benefits for bilateral tinnitus, and the veteran's
disagreement with that decision led to this appeal. On his
VA Form 9, Appeal to Board of Veterans' Appeal, filed in
January 2006, the veteran requested a hearing at the RO
before a member of the Board, but in a statement received at
the RO in February 2006, the veteran withdrew his request for
a hearing.
FINDING OF FACT
The veteran's service-connected tinnitus is rated as
10 percent disabling, the maximum rating authorized under
Diagnostic Code 6260.
CONCLUSION OF LAW
There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for "bilateral"
tinnitus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §4.87
Diagnostic Code 6260 (2007); Smith v. Nicholson, 451 F.3d
1344 (Fed. Cir. 2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The United
States Court of Appeals for Veterans Claims (Court) has held
that the statutory and regulatory provisions pertaining to
VA's duty to notify and to assist do not apply to a claim if
resolution of that claim is based on statutory
interpretation, rather than consideration of the factual
evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149
(2001).
In the instant case, the facts are not in dispute.
Resolution of the veteran's appeal is dependent on
interpretation of the regulations pertaining to the
assignment of disability ratings for tinnitus. As will be
shown below, the Board finds that the veteran is already
receiving the maximum disability rating available for
tinnitus under the applicable rating criteria. Further,
whether the veteran's tinnitus is perceived as unilateral or
bilateral, the outcome of this appeal does not change.
The veteran requests that he be assigned a 10 percent rating
for each ear as he experiences bilateral tinnitus. He argues
that from the time he was granted service connection for
tinnitus, which was before June 2003, he should have been
awarded a 10 percent rating for each ear. The RO denied the
veteran's request because under Diagnostic Code 6260, which
specifies the rating criteria for tinnitus, there is no
provision for assignment of a separate 10 percent evaluation
for tinnitus of each ear. The veteran appealed that decision
to the Board.
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the Court
held that the pre-1999 and pre-June 13, 2003 versions of
Diagnostic Code 6260 required the assignment of dual ratings
for bilateral tinnitus. VA appealed this decision to the
United States Court of Appeals for the Federal Circuit
(Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344
(Fed. Cir. 2006), the Federal Circuit concluded that the
Court erred in not deferring to VA's interpretation of its
own regulations, particularly 38 C.F.R. § 4.25(b), which
pertains to VA's combined ratings table, and 38 C.F.R.
§ 4.87, which VA has interpreted as limiting a veteran to a
single disability rating for tinnitus, whether the tinnitus
is unilateral or bilateral.
The veteran's service-connected tinnitus has been assigned
the maximum schedular rating available. 38 C.F.R. § 4.87,
Diagnostic Code 6260. As there is no legal basis upon which
to award separate schedular evaluations for tinnitus in each
ear, the veteran's appeal must be denied. Sabonis v. Brown,
6 Vet. App. 426 (1994).
ORDER
Entitlement to separate 10 percent ratings for each ear for
tinnitus is denied.
____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs